Pena v. Snare

• Decision Date: 12 July 1946
• Docket Number: No. 2682.,2682.
• Citation: Pena v. Snare, 196 S.W.2d 207 (Tex. App. 1946)
• Parties: PENA et al. v. SNARE et al.
• Writing for the Court: Hale
• Court: Texas Court of Appeals

Page 207

196 S.W.2d 207

PENA et al. v. SNARE et al.

No. 2682.

Court of Civil Appeals of Texas. Waco.

July 12, 1946.

Rehearing Denied September 5, 1946.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Suit by Mary Pena and others against Sarah Snare, supervisor, and others, to set aside a former judgment decreeing a child of named plaintiff to be dependent and neglected and committing its custody to named defendant and to obtain a mandatory injunction requiring named defendant to deliver the child to named plaintiff. From a judgment of dismissal, plaintiffs appeal.

Judgment reversed and cause remanded for further proceedings not inconsistent with opinion.

Tom M. Hamilton and J. A. Kibler, both of Waco, for appellants.

W. H. Earle and Fitzpatrick & Dunnam, all of Waco, for appellees.

HALE, Justice.

This suit involves the custody of a child. It was instituted on September 7, 1945, by the child's mother, suing individually and as next friend, against appellee as supervisor of McLennan County Child Welfare Unit. The objects of the suit were (1) to set aside a prior judgment rendered by the court below on February 28, 1945 decreeing the child to be dependent and neglected and committing its custody to appellee and (2) to require appellee by mandatory injunction to deliver the child to its mother. Appellee answered, among other things, with two exceptions, thereby asserting that the present proceeding should be dismissed because the pleading of appellant (1) "failed to disclose any merit," and (2) such pleading constituted a motion for new trial in the former proceeding and was filed too late. Without hearing any evidence the court sustained the exceptions and dismissed the suit. Appellant says such action constituted reversible error.

In her petition appellant alleged in substance that on February 27, 1945, appellee instituted an ex parte proceeding in that court seeking to have the child declared dependent and its custody committed to her; that appellee attached to the application in the ex parte proceeding a written instrument purporting to be a request on the part of appellant to have her daughter declared a dependent child; that no citation or other notice was issued on said application; appellant "is a Mexican, is ignorant and uneducated and is unable to read, or write, or understand the English language"; the child was born on February 22, 1945, and on or about that date appellee presented to appellant the instrument aforesaid typewritten in English and requested appellant to sign the same, making certain false representations as to the contents and purposes of such instrument; appellant signed the same believing such representations to be true, not knowing that such instrument purported to be a request on her part to have her infant adjudged a dependent and neglected child; appellant was not present or represented at the hearing in the ex parte proceeding, had no knowledge or notice thereof, or of the entry of judgment therein until after the term of court at which said judgment was rendered had adjourned; and after appellant had recovered from the effects of childbirth she repeatedly requested appellee to restore to her the custody of her child but appellee "has failed and refused to do so and has delivered the care and custody of said infant to Andraes Macia and Amelia Macia and said parties on, to-wit, August 31, 1945 filed in this Court their application for the...